Citation Nr: 0840196
Decision Date: 11/21/08 Archive Date: 11/25/08
DOCKET NO. 06-25 240 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for erectile
dysfunction, to include as due to herbicide (Agent Orange)
exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran (appellant) had active service from September
1967 to April 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2006 RO rating decision that
denied service connection for bilateral hearing loss,
tinnitus, and for erectile dysfunction. A July 2006 RO
decision (issued in a statement of the case) denied service
connection for erectile dysfunction, to include as due to
Agent Orange exposure.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board finds that there is a further VA duty to assist the
appellant in developing evidence pertinent to his claim.
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008).
The veteran's DD-214 indicates that his occupational
specialty was listed as a field wireman. He had one year and
twenty-two days of foreign and/or sea service, and he was
awarded decorations indicating Vietnam service.
As to his claims for service connection for bilateral hearing
loss and tinnitus, the veteran contends that he was exposed
to acoustic trauma during his tour of duty in Vietnam. He
specifically alleges that he operated a 50 caliber machine
gun, and that he also fired an M60 on bunker guards. He
further reported that they faced incoming rounds that also
contributed to his bilateral hearing loss and tinnitus.
The veteran's service treatment records indicate that, at the
time of the August 1967 pre-induction examination, no defects
were noted with respect to his ears. An audiological
evaluation showed pure tone thresholds in the veteran's right
ear of 15 (30), 10 (20), 15 (24), and 5 (10) decibels at 500,
1000, 2000, and 4000 Hertz. As to his left ear, pure tone
thresholds were 15 (30), 15 (25), 10 (20), and 40 (45)
decibels at the same frequencies. (NOTE: Prior to November
1, 1967, audiometric results were reported in standards set
forth by the American Standards Association (ASA). Those are
the figures on the left and are not in parentheses. Since
November 1, 1967, those standards have been set by the
International Standards Organization (ISO)-American National
Standards Institute (ANSI). In order to facilitate data
comparison, the ASA standards have been converted to ISO-ANSI
standards and are represented by the figures in parentheses.)
The April 1969 service separation examination report
indicated that the veteran had no ear defects. An April 1969
audiological evaluation showed pure tone thresholds in his
right ear of 5, 10, 5, and 5 decibels at 500, 1000, 2000, and
4000 Hertz. Pure tone thresholds in the veteran's left ear
were 10, 0, 0, and 5 decibels at the same frequencies.
Post-service VA treatment records show treatment for
bilateral hearing loss and for tinnitus. For example, and
October 2001 VA treatment entry noted that the veteran
admitted to some hearing loss and occasional tinnitus. The
assessment included hearing/tinnitus with the ear examination
unremarkable. It was noted that the veteran declined an
audiological consultation.
At a May 2006 VA audiological consultation, the veteran
reported a history of bilateral tinnitus for several years.
He had no complaints of decreased hearing sensitivity, aural
fullness, vertigo, or differences between the ears. The
veteran reported that he had left ear hearing loss while on
active duty in the military. The assessment was bilateral
high frequency sensorineural hearing loss with high frequency
left ear asymmetry.
As in this case, where audiological measures of hearing loss
in service do not demonstrate any measurable loss of hearing
in service, the United States Court of Appeals for Veterans
Claims (Court), in interpreting 38 C.F.R. § 3.385, has held
that a veteran may establish the required nexus between his
current hearing loss disability and his term of military
service if he can show that his hearing loss disability
resulted from acoustic trauma. Godfrey v. Derwinski, 2 Vet.
App. 352 (1992). The Board observes that the veteran has not
been afforded a VA examination with an etiological opinion
after a review of the evidence of record as to his claims for
service connection for bilateral hearing loss and for
tinnitus. Such an examination should be accomplished on
remand. 38 C.F.R. § 3.159(c)(4).
As to the claim for service connection for erectile
dysfunction, to include as due to Agent Orange exposure, the
veteran contends that he has erectile dysfunction that is
related to an electrical incident that he experienced during
service. He also alleges that a severe rash that he had in
Vietnam led to his erectile dysfunction. His service
treatment records do not show any treatment for erectile
dysfunction during service. A January 1969 entry did refer
to contact dermatitis.
Post-service VA treatment records show treatment for erectile
dysfunction. For example, an October 2001 VA treatment entry
related an assessment that included erectile dysfunction.
On the question of relationship of erectile dysfunction to
service, a February 2005 VA treatment entry indicated an
assessment that included Agent Orange exposure/erectile
dysfunction. An August 2005 VA treatment entry noted an
assessment that included Agent Orange exposure/erectile
dysfunction/mild benign prostatic hypertrophy. The Board
observes that there is no indication that the examiners,
pursuant to those treatment entries, reviewed the veteran's
claims file in providing such entries, and it is questionable
whether such notations are actually diagnoses or nexus
opinions. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995)
("a bare transcription of a lay history is not transformed
into 'competent medical evidence' merely because the
transcriber happens to be a medical professional").
The Board notes that the veteran also has not been afforded a
VA examination with an etiological opinion after a review of
the evidence of record as to his claim for service connection
for erectile dysfunction, to include as due to Agent Orange
exposure. Such an examination should also be accomplished on
remand.
Accordingly, the case is REMANDED for the following:
1. Schedule the veteran for a VA
audiological examination to determine the
nature and etiology of his claimed
bilateral hearing loss and tinnitus. The
relevant documents in the claims folder
must be provided to and reviewed by the
examiner in conjunction with the
examination. The examiner should conduct
an audiological evaluation, including
speech recognition testing, to determine
whether the veteran currently experiences
hearing loss and tinnitus. If current
hearing loss and tinnitus are identified,
the examiner should offer opinions as to
whether it is at least as likely as not
(50 percent or greater probability) that
any current hearing loss and tinnitus were
incurred in service, or are the result of
exposure to acoustic trauma during the
veteran's period of service. If the
examiner finds that any diagnosed hearing
loss (to specifically include left ear
hearing loss) existed prior to service,
the examiner should comment on whether any
such pre-service hearing loss was
permanently worsened by service.
2. Schedule the veteran for a VA
examination by a physician to determine
the nature and likely etiology of his
claimed erectile dysfunction, to include
as secondary to herbicide (Agent Orange)
exposure. The relevant evidence in the
claims folder must be provided to and
reviewed by the examiner in conjunction
with the examination. Based on a review
of the evidence, examination of the
veteran, and generally accepted medical
principles, the examiner should provide a
medical opinion, with adequate rationale,
as to whether it is at likely as not (50
percent or greater probability) that any
current diagnosed erectile dysfunction is
etiologically related to any aspect of
the veteran's period of service. The
examiner should specifically indicate
whether the veteran's current erectile
dysfunction is related to herbicide
(Agent Orange) exposure he had in
Vietnam.
3. Thereafter, review the veteran's
claims for entitlement to service
connection for bilateral hearing loss,
tinnitus, and for erectile dysfunction, to
include as due to herbicide (Agent Orange)
exposure. If the claims are denied, issue
a supplemental statement of the case to
the veteran and his representative, and
provide an opportunity to respond before
the case is returned to the Board.
The purposes of this remand are to ensure notice is complete,
and to assist the veteran with the development of his claims.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The Board takes this opportunity to advise the appellant that
the conduct of the efforts as directed in this remand, as
well as any other development deemed necessary, is needed for
a comprehensive and correct adjudication of his claims. His
cooperation in VA's efforts to develop his claims, including
reporting for any scheduled VA examination, is both critical
and appreciated. The appellant is also advised that failure
to report for any scheduled examination may result in the
denial of a claim. 38 C.F.R. § 3.655 (2008).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
J. Parker
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).